'A win for all women': How Joy won IVF access without her estranged husband's consent

Joy* sat in the consulting room at a Melbourne IVF clinic and stared in shock at the liaison officer who had just broken the devastating news.

“I just looked at her. I was full of emotion, anger and disbelief. How could he still have power and control over me, when I had left the relationship for those reasons?” she says.

Joy (right) has spoken for the first time about her successful landmark legal fight for the right to access IVF without her estranged husband's consent.Credit:Joe Armao

Joy* is still legally married, but estranged from her husband, and does not live with him.

He was psychologically abusive throughout their marriage of more than a decade, and early in their relationship there were incidents of physical abuse, she says. She intends to divorce him when the 12-month waiting period that is required under law is over.

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Desperate to conceive, Joy, a professional in her 40s, decided to try for a baby through in-vitro fertilisation, using her own eggs and donor sperm.

She didn’t want her soon-to-be-ex husband to be involved in the baby’s life in any way, and he was unaware of her decision.

But - as the apologetic staff member told Joy at the clinic that day - Victoria’s current reproductive treatment laws prevent any such procedure being provided to a woman who is married, unless her husband consents.

“No way did I think he should have that kind of power,” says Joy. “How, in this day and age, do our laws continue to give power to men over women around their reproductive choices?”

How, in this day and age, do our laws continue to give power to men over women around their reproductive choices?

"Joy"

Furious, Joy lodged a complaint with the Victorian Human Rights and Equal Opportunity Commission and approached Maurice Blackburn Lawyers, which agreed to act pro bono and bring the matter to the Federal Court.

For Joy, the weeks before the court case were a blur of stress.

She met with lawyers to get ready for court and pumped herself full of hormones to prepare for egg collection, patiently hoping the IVF bid would be successful.

In a landmark decision on September 21, Joy won the right in the Federal Court to undergo IVF without her estranged husband's consent, setting a legal precedent for similar cases in the future.

Judge John Griffiths ruled that legislation was “invalid and inoperative” in this case and that it discriminated against the woman on the basis of her marital status.

When Joy was told over the phone of the judge’s decision she broke down: “It was a really important step for me personally but the overwhelming emotion was ... wow, I feel like I’ve done something for other women.”

She agreed to talk to The Age because she feels her case highlights the sheer effort that individual women have to make to challenge the societal structures that discriminate against them.

And it was an ordeal that came at great emotional and personal cost. The delay caused by the court case has reduced the optimal harvest of Joy’s eggs, and she worries that time is against her.

“If I’m going to have to wear the cost ... of not being gifted with a child then the only thing that would make it worth it is if this case stops other women in the same predicament from having to do it ever again,” she says through tears.

Victoria’s reproductive technology laws, last amended a decade ago, are currently under a 12-month review.

In his summary, Judge Griffiths said there was a strong case to change the legislation for women in the same situation. But this was a matter for the Victorian Parliament, not the court, he said.

Jennifer Kanis, a senior associate at Maurice Blackburn, doesn’t believe the requirement that women should seek husband’s consent was intentional, but rather a legislative oversight.

The Victorian laws should be amended and the definition of a partner should no longer include a woman who is separated from her spouse, she says.

Maurice Blackburn have presented this argument, with reference to Joy’s case, to the panel who is overseeing the review.

“We are much more aware now of the levels of control that men can have over women’s lives and women’s bodies,” Ms Kanis said.

“It’s important we make sure women have autonomy and are not subjected to control by a man who has no interest in the matter.”